Tuesday, March 29, 2005

Time is running Out

LATER today, a man awaiting trial in Australia on charges of rape and aggravated burglary is expected to give evidence in the trial of Schapelle Corby in Indonesia.

It is alleged that, while in jail, John Ford overheard a conversation between two people to the effect that Corby was the innocent victim in a failed drugs transfer between Brisbane and Sydney airports. While Ford's evidence is hearsay only, if it were accepted by the Denpasar District Court it would cast serious doubt on the charges against Corby, which relate to the alleged importation of more than 4kg of cannabis into Bali last October.

If Corby is found guilty, she may face the harshest sentence – the death penalty. Prime Minister John Howard has publicly stated his concerns regarding some aspects of her trial and Foreign Affairs Minister Alexander Downer had planned to meet Corby's lawyers earlier this month. The release of Ford to give evidence in Indonesia was possible only with the assistance of the Attorney-General's Department.

These events, as well as developments in several other high-profile criminal cases overseas, have raised the question of how Australia might seek to exert some influence over legal proceedings in another country.

In contrast to concerns raised here about the harshness of the sentence that may face Corby, the recent 30-month prison sentence imposed on Abu Bakar Bashir by a Jakarta Court for "committing an evil conspiracy" in relation to the Bali bombings has understandably drawn strong criticism from both sides of federal politics as being inadequate. The Government has lodged a formal protest with its Indonesian counterparts and has urged the prosecutors to take every effort to appeal against the leniency of the decision.

Each case does give rise to concern, particularly given their respective political connotations. The prosecution of Corby involves what is allegedly the largest attempted importation of drugs into the Bali area. Even as Ford testifies, questions remain as to the failure of the authorities to test other vital evidence. In the circumstances, the strident calls by the prosecutor for the death penalty appear to be as much about law and order issues as they are about any notion of justice.

In the case of Bashir, his acquittal on six of the seven charges he faced has been deemed a blow to the war on terrorism. His conviction and sentence have upset his supporters – who believe his was a political trial initiated only because of pressure from the US and Australia – and those who believe that his culpability for the tragedy at Bali and for other acts of terror was clear.

As worrying as these concerns may be, there is little Australia can do to interfere in the domestic legal processes of Indonesia.

A fundamental precept of international law is the "sovereign equality" of countries, meaning that one country cannot impose its legal standards or procedures upon the legal system operating in another country. It could not be otherwise or there would be no certainty as to the prevailing laws in any place.

Of course, there are some international legal norms that are relevant to a fair trial. The International Criminal Court, for example, has established processes to ensure that these rights are protected even for those accused of the most heinous crimes.

In 2001, Germany obtained a decision from the International Court of Justice that the process by which two German nationals were convicted for murder by a court in Arizona was in breach of international law, since they had not been informed of their rights to consular access at the time of their arrest (the two Germans were executed anyway).

An assertion by Australia that any overseas trial involving its nationals has breached international law would require a political decision to institute proceedings in the International Court of Justice. This is not a realistic possibility, even assuming that the jurisdictional roadblocks that would hamper this move could be overcome.

Yet it is clear that Canberra must take an interest in criminal trials that involve Australians in other countries.

Every Australian is entitled to a fair trial and all necessary diplomatic means should be used to ensure that this is what takes place.

My personal thoughts; well i feel that everyone travelling to another country needs to take heed of its laws and penalties. Indonesia would have to have the worlds most draconian criminal justice system. No jury, 3 judges and a media circus. Unfortunately for Corby, i feel Ford's hearsay evidence will not be taken into account, and the fact he resfused to name the actual person responsible can only add to doubts.

3 Comments:

It's always been my understanding (read: I heard this once and chose to believe it without looking for more information on the subject) that when you travel to a foreign nation, you are responsible for knowing their laws. Sort of a strict liability issue. I don't know if this is in keeping with the sentiments of the post or not, but that's about all I can say on the matter at this time. I'll have to study international law next year to get a better understanding.

Yes Steve, your encouraged to know their customs, laws etc, however i don't think it's a strict liability issue, its your own volition to be aware.International Law..hhmmmm i could write a book on that...LOL

"well i feel that everyone travelling to another country needs to take heed of its laws and penalties."

This is a lesson that some American youth learned the very hard way during the 1970s: free love and easy drugs don't translate well to places such as, say, Turkey, who doesn't give a rip about the Bill of Rights you enjoy at home.

I would say that most travellers have no need to brush up on the laws of the country they plan to visit: a little common sense will tell you that carrying around stashes of illegal drugs is not the best idea in the world.